A girl was shot dead and burnt after being allegedly raped in Kududha village of Bihar’s Buxar district on December 2. A minor girl’s alleged gang-rape in Odisha’s Puri district has left many shocked. In the evening of December 2, she was waiting for a bus at Nimapara Square to go to Kakatpur. Four persons, including former constable Jitendra Sethi, stopped their car and offered her a lift. She turned it down. The four then forced her into the car and locked the doors. They then took her to a government quarter and raped her. A 55-year-old woman was allegedly raped and murdered and robbed of 80,000 in cash and her mobile phone by a neighbour at G.Vemavaram village, Polavaram Mandal, East Godavari late on the same day. The rape, murder and burning of the body of 26-year old veterinary doctor in Shadnagar, Hyderabad, Telangana shocked the conscience of the nation. Thus goes the news.
The honourable members of Parliament cutting across party lines not only demanded the hanging of the accused but also argued to have the death penalty as the “only punishment” for the offence of rape. Defence Minister Rajnath Singh told the Lok Sabha that the Central Government is ready to make more stringent provisions in law, after members expressed outrage over the rape and murder of Hyderabad veterinarian. A heated debate on the issue saw several Rajya Sabha members moot drastic punishments including lynching and castration for rapists. One thing is common here with everyone that a stringent or deterrent punishment is needed for the accused in rape cases.
First, we heard only about cases of rape, then started gang rape, then came murdering the victim, now started burning the dead body of the victim. Is the existing law capable of instilling fear in the accused? Can the deterrent punishment alone instil fear in the accused?
After the Nirbhaya gang rape in Delhi, in 2012, the Government has made stringent punishments through “Criminal Law Amendment Act 2013”. Under Section 376, a man commits rape on a woman will be punished with rigorous imprisonment for not less than 7 years. Rape by a Police Officer, Public servant, member of Armed forces or a person being on the management or on the staff of a jail, remand home or other place of custody or women’s or children’s institution or by a person on the management or on the staff of a hospital or rape committed by a person in a position of trust or authority towards the person raped will be punished with rigorous imprisonment of not less than 10 years. Under Section 376A, person committing an offence of rape and inflicting injury which causes death or causes the woman to be in a persistent vegetative state will be punished with imprisonment not less than 20 years imprisonment, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life or with death. Amendment has also added Section 376D providing 20 years’ minimum rigorous imprisonment to the accused in the gang rape. And which may be also extended to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life and with fine to be paid to the victim.
After, all these deliberations, discussions, and amendments, nothing seems to have changed for women who venture out for education, work, entertainment, or for any other purpose. Public spaces are turning extremely unsafe for women of all ages with predators lurking everywhere.
However, conviction or punishment is the last stage. Even after the cry and hue by the civil society in grave rape cases, the conviction rate is very low. Most important is the ‘Trial’ that is the procedure to conviction or acquittal.
Why is the conviction rate very low in criminal cases in India? Two main reasons can be (1) the wilful negligence of the Government (State or Centre) (2) Undue influence of the accused
Of course, the State Government and the Central Government have to play a vital role in dispensing justice. Under the existing law, the Government appoints the public prosecutor to defend the victim. The accused has every right to choose an advocate of his/her choice. In most cases, the Government is in favour of the accused, more especially when the accused belongs to the ruling party. Government seems to be afraid of religious leaders, politicians, and the rich. Sorry to say, some Governments are well influenced by money power, muscle power and mafia.
Witness protection is very important. In Mahender Chawla & Ors vs. Union of India & Ors, Supreme Court re-instated the importance of witness protection. Witnesses are important players in the judicial system and help the judges in arriving at correct factual findings. As Whittaker Chambers said, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so disregarding all risks, accepting all consequences”. As Bentham said, “witnesses are the eyes and ears of justice,” hence the importance and primacy of the quality of the trial process.
Adversely in India witnesses are harassed a lot. Even Ministers and elected representatives openly side with the rape accused as in Kathua or Shahjahanpur. It is the victims and witnesses who are named, shamed, and blamed. The accused tries either to annihilate the witness or to threaten to detract from the statements or to make her/him unsound mind. However, in most cases, the government fails to protect the witnesses. The accused is very powerful and influential that he/she threatens the witnesses and later the witnesses retract from the statements and the judgement will be “Public Prosecutor has failed to establish the crime beyond doubt, hence the accused is entitled to the benefit of doubt” and the accused escapes punishment.
In the interest of justice, I feel strongly, in addition to the Public Prosecutor the victim must have the freedom in criminal law to choose and appoint an advocate of her/his choice where the government should meet the expense, of course, a point to think and consider as the victim cannot depose faith in the Public Prosecutor who is appointed by a Government which is in favour of the accused.
Charge sheet: Supreme Court has observed in many cases ‘charge-sheet-biased, vitiated, or stale in nature can defeat justice (Dipak Kumar Maity Vs. State of West Bengal and Ors). No victim can expect a non-biased charge-sheet from the police who are in support of the State or accused. A just and proper charge-sheet can be expected only from non-biased police force. There is a need even in the investigation, and the production of evidence, the victim should be given an officer or advocate of her choice, in whom she has trust and confidence in the interest of justice, of course, a point to consider again at least in course of time.
Inaction of the police: After the Nirbhaya incident, the law was amended to bring zero FIR provision to enable immediate registration of a case, irrespective of the Jurisdiction, in an emergency. But some police officers themselves are not aware of the zero FIR provision and others, those who know, only try to harass the victim. Several voices have been raised to question the behaviour of police when the mother of the veterinary doctor went to the police station to lodge a missing complaint. Three men of uniform have been suspended for their negative response and inaction with regard to the complaint. Sadly, however, she is not alone in courting such an unpleasant experience at a police station. Many social activists say Police are not women-friendly. Policemen often look askance at the complainant, especially when it is a woman. The first reaction after hearing a complaint would be to suspect the complainant, and the next is giving unsolicited advice. A software professional said, “I once went to a police station to lodge a complaint about abusive calls and messages on my mobile phone. The sub-inspector on duty immediately deduced that it must be someone I knew and that I was only trying to get back at him. After several entreaties, he agreed to trace the person. As I turned to leave, he generously advised me to send my father next time, and not to come to the station alone.”
Implementation of the law: The J.S Verma Committee set up aftermath of Nirbhaya incident had given ample suggestions including changes in school and college syllabi to educate young people on the social values of equality and respect for women’s autonomy, ensuring safe public transport, city and street lighting, CCTV cameras, mapping unsafe areas and provision of increased police patrolling in such areas and a slew of other steps. If these measures had been implemented seriously perhaps many rape cases would have been avoided.
Therefore, it is not the stringent punishment alone that can bring justice to the victim. Death penalty or lynching is not a solution to prevent rape. A proper trial, non-biased, transparent free from the influence of the Government or mafia only can bring justice to the victim, means such trial only can bring an accused to conviction and then a deterrent punishment. Otherwise, as a study reveals, most of the persons languishing in jails are the poor, Dalits, Minorities and weaker sections, in rape cases too such persons will have to go to gallows as they are helpless and non-influential.
However the Parliament, Executive and Judiciary should play a vital role to bring safety to the women of this country.(Published on 09th December 2019, Volume XXXI, Issue 50)